Citation Nr: 21062944 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-15 667 DATE: October 12, 2021 ORDER Entitlement to service connection for diabetes mellitus type II, due to presumed herbicide agent exposure is granted. FINDING OF FACT The Veteran was exposed to herbicide agents in Thailand and has diabetes mellitus type II. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus type II have been met 38 U.S.C. §§ 1110, 1116, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1972 to May 1982. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board denied entitlement to service connection for diabetes mellitus, type II, to include as secondary to in-service exposure to tactical herbicide agents. A Joint Motion for Remand (JMR) was filed at the United States Court of Appeals for Veterans Claims (Court), on the basis that the Board erred by failing to ensure that VA substantially complied with its October 25, 2018, remand. Specifically, VA did not provide the Veteran with a medical opinion addressing whether his diabetes mellitus, type II had its onset during service or within one year of service. In April 2021, the Court granted the JMR, vacated the May 2020 Board decision, and remanded the matter to the Board for action consistent with the terms of the JMR. Although the JMR found there was not substantial compliance to with the October 25, 2018 remand, the evidence of record contains sufficient evidence to establish the benefit sought on appeal. Thus, the case may proceed to adjudication. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a presumptive basis for if a veteran was exposed to an herbicide agent, such as Agent Orange, during service. See 38 U.S.C. §§ 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Although veterans who served in the Republic of Vietnam are presumed to have been exposed to herbicide agents, the Veteran served in Thailand. In addition to exposure within the Republic of Vietnam, exposure to Agent Orange and other herbicide agents has been noted to have occurred in various places outside of the Republic of Vietnam, including Thailand:" VA Compensation Service has acknowledged that there is some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.' Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (quoting COMP. & PENSION SERV. BULL. (U.S. Dep't of Veterans Affairs, Washington, D.C.), May 2010, at 3). Specifically, VA has determined that U.S. Air Force Veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. To warrant a finding of herbicide agent exposure at one of the above listed air bases, a veteran must have served as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluation, or other credible evidence. If any of these criteria are met, exposure to herbicide agents is to be conceded on a direct/facts-found basis. In the case of veterans who served at a U.S. Army base in Thailand during the Vietnam era, herbicide agent exposure may be conceded on a direct/facts-found basis for veterans who served as a member of the military police unit, or with a military police occupational specialty. A veteran who was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with exposure to herbicide agents includes type II diabetes mellitus. 38 U.S.C. § 1116(a)(2)(H); 38 C.F.R. § 3.309(e). 1. Diabetes Mellitus In this case, the evidence of record indicates a current diabetes mellitus diagnosis. Specifically, a November 2019 VA examination report shows a diagnosis of diabetes mellitus, type II. Thus, the first element of service connection has been met. With respect to the question of service incurrence, the evidence does not indicate, nor does the Veteran contend that he was exposed to herbicide agents while serving in Vietnam. Specifically, he asserts that he was exposed to Agent Orange while serving at the Korat Air Base in Thailand. In this case, VA has attempted to confirm whether the Veteran has qualifying Vietnam era service as contemplated by VA laws in regulations. A July 2015 administrative decision concluded that there was insufficient information to verify service in the Republic of Vietnam, or exposure to Agent Orange during military service. A February 2020 administrative decision concluded information required to corroborate Agent Orange exposure in Thailand was insufficient. The Veteran's DD Form 214 shows his military occupation specialty (MOS) was inventory management specialist. His personnel records reflect that he served at Korat RTAFB from November 1974 through September 1975. In a July 2015 statement, the Veteran reported that when he served in Korat Thailand, he was in contact with any and all types of items that was being used in the military. He noted that his doctors have been unable to determine any other factors leading to his diabetes diagnosis, has he never had a weight problem, nor does diabetes run in his family. The Veteran further noted that nurses at the VA stated that it could very well be from Agent Orange. In his August 2015 Notice of Disagreement (NOD), the Veteran reported that he worked as an inventory management specialist at the Defense Property Disposal Office (DPDO) in Korat Thailand, RTAFB which was the first building after entering the perimeter gate. He stated that a fence separated his work location from the flight line, and he was able to see and hear F-4 and F-11 planes takeoff constantly. In an April 2016 statement, the Veteran reported that his worksite was near the main gate of Korat RTAFB, and a chain link fence separated his physical job location from the flight line. In a July 2019 statement, the Veteran indicated that he was exposed to herbicide agents when working at a scrap yard directly on the inside of the base perimeter, inside the DPDO fence, with a clear view of the flight line. He noted that he touched and handled much of the materials from different bases in the area, including remnants of crashed aircraft and spent shells. The Veteran was afforded a VA examination in November 2019. The examiner opined that it is at least as likely as not the Veteran's diabetes mellitus type II is due to Agent Orange exposure in service. The examiner explained that the Veteran reported that his duties placed him 100-200 yards from the perimeter of the fence (which would be within the "drift zone" of Agent Orange use). The examiner further explained that he reviewed maps of Korat and have no reason to doubt the Veteran's statements. The Board must consider lay evidence in addition to the service records, and the places, types, and circumstances of service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In addition, the Board must consider historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016). As contended by the Veteran's attorney, there is no affirmative evidence contradicting the Veteran's reports of being at the perimeter of the base and these reports are consistent with the information contained in his service records. The statements of the Veteran are competent, credible, and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § § 1154 (a); 38 C.F.R. § 3.303 (a). Exposure to herbicide agents is therefore conceded on a direct/facts-found basis. As the Veteran currently has diabetes mellitus type II and is presumed to have been exposed to herbicide agents in Thailand, service connection for diabetes mellitus type II is warranted on a presumptive basis. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.